A court-appointed eDiscovery special master recently issued a stunning report, recommending case-ending discovery sanctions against a defendant medical provider for its systematic destruction of electronically stored information (ESI). In Small v. University Medical Center of Southern Nevada, the special master explained that the defendant’s discovery misconduct was so egregious as to “shock the conscious” and make “a mockery of the orderly administration of justice.” The overall nature and scope of that data loss, along with the resulting prejudice to the plaintiffs, led the special master to recommend that the court enter an order of default judgment (among other sanctions) in favor of over 600 named plaintiffs in that wage and hour class action.

While the defendant’s failure to “institute a timely and effective litigation hold” generally resulted in the spoliation of several classes of ESI, the special master was particularly troubled by the defendant’s failure to preserve text messages and other mobile device data. The breakdown in the preservation process for mobile devices was twofold: the defendant failed to retain responsive ESI from “company-issued, personally enabled” (COPE) BlackBerry devices and from personal smart phones that employees used under an ad hoc “bring your own device” (BYOD) policy.

COPE Devices

With respect to the COPE devices, the defendant neglected to issue any type of litigation hold until it was too late. In response to questioning from the special master and plaintiffs’ counsel regarding its mobile device hold efforts, the defendant’s IT manager who was “tasked with Blackberry preservation” testified as follows:

SPECIAL MASTER: So nobody instructed you at that time [when she was instructed to collect mobile data on January 21, 2014] to preserve all the data?

KISNER: No. But I don’t believe we wiped them from that day forward.

SPECIAL MASTER: I got it. I’m just inquiring.

KISNER: Have they all been wiped? Yes. Because we moved them.

GODINO: Were you aware of any efforts by anyone toward the end of 2013 to preserve or collect this type of cell phone data?

KISNER: No.

GODINO: No one ever asked you?

KISNER: No one ever said anything.

Because the defendant failed to issue a litigation hold, the BlackBerry devices for various custodians were “wiped.” The resulting destruction was staggering: “approximately 26,310 [text] messages were lost or deleted.”

Personal Devices

The failure to preserve responsive data maintained on the defendant’s personal smart phones was even more problematic. Not only did the defendant not issue a litigation hold regarding those devices, but several key custodians concealed the use of their personal cell phones for work purposes:

Every one of the custodians were asked the explicit question do they use these devices for personal use — for work-related use, and they disavowed it, some multiple times. . . . several high priority custodians [later confirmed though] that they used their personal mobile devices for work-related purposes.

Indeed, one of these employees “used a personal phone and . . . . had no UMC-issued device for ‘at least the last two or three years.’” Taken together, the combination of the ad hoc BYOD policy, the failure to issue a litigation hold, and the employees’ misrepresentations regarding the use of their personal phones culminated in the destruction of two years’ worth of potentially responsive text messages and other mobile device ESI.

Lessons on Mobile Device Litigation Holds

The Small case is significant for three reasons. First, it emphasizes the importance of developing a litigation readiness program that includes a process for issuing a timely and comprehensive litigation hold. Since the Zubalake line of cases over ten years ago, lawyers and litigants have been on notice that this process should generally include identifying the key players possessing potentially relevant information, preparing/circulating intelligible hold instructions, and then taking follow-up measures to ensure continued compliance with the hold.

Second, Small – just like the recent Brown case – teaches the importance of recognizing that new and dynamic forms of evidence must be kept for litigation. Unless appropriate steps are taken to preserve relevant information maintained on mobile devices, stored with cloud computing providers, or communicated through social networks, a company’s litigation hold process might not be defensible.

Finally, Small spotlights the need to develop mobile device use policies that protect corporate interests. Whether it elects to use a COPE, BYOD, or a hybrid program, the policy should define the nature and extent of the enterprise’s right to access and preserve data on the employee device, particularly for use in litigation.

Taking these steps and other best practices will likely help companies and counsel avoid the litigation hold shortcomings that proved disastrous in Small.